There is a fundamental objection to the relator’s application which is quite independent of the question whether or not Hornidge was legally appointed, and that is that the relator could not, whether a successor was appointed or not, hold office beyond the term for which he was appointed, which it is conceded expired by limitation on July 9, 1907. It has been held in this State that at common law, and ill the absence of a statute so providing, an officer whose term has expired has no right to hold oyer (People ex rel. Morton v. Tieman, 8 Abb. Pr. 359), and he certainly can have no such right when he is expressly excepted from the operation of a statute giving to officers generally the right to hold over. Section. 5 of the Public Officers Law (Laws of 1892, chap. 681) provides that “Every officer, except a judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the Constitution, * * * shall * * * ]10ld over and continue to discharge the duties of his office, after the expiration of the term for winch he shall have been chosen, until his successor shall be chosen, and qualified.”
The exception applies, to every judicial officer, and is not limited' to magistrates, judges or justices. It has been distinctly held by the Court of Appeals that an assistant clerk- of a District Court in the city of New York, predecessor of the present Municipal Court, is a judicial officer embraced within the judiciary system of the State. (Whitmore v. Mayor, 67 N. Y. 21; People ex rel. Gilchrist v. Murray, 73 id. 535.) The same rule must apply to the relator, and as his claim to salary must rest upon the validity, of his own title to the office, and -not upon any supposed 'defect in. .the title of *315him who claims to have been appointed as his successor, it follows that his present application should be denied. If or am I at all convinced that Hornidge was not legally appointed. It seems to me to be. clear that the sections of the charter of 1897 relating to the Municipal Court intended to provide for two classes of justices to be appointed by the mayor. One class consisted of those justices whose office was created by the charter, who were to be originally appointed by the mayor, and who were to hold, office until December 31, 1899, or a term of nearly two years. It was with reference to these justices that section 1373 provided that clerks and assistant clerks should be appointed for a term of six years by the justices “ elected or appointed,” and those words applied only to those newly-created justices. (Stuber v. Coler, 164 N. Y. 22.) It was necessary to specifically authorize these originally appointed justices to appoint clerks, because as their office was newly created they succeeded no one, filled no vacancy, took no authority by devolution from any predecessor, and could nót have equipped their courts unless, given power to appoint clerks. When the revision of 1901 was made this necessity had disappeared, because all the originally appointed justices had been succeeded by elected justices. It was for this reason alone, as I consider, that the words “ or appointed ” were omitted in the revision from section 1373, leaving the provision as it now stands that clerks and assistant clerks shall be appointed by justices “elected” from the district. In my.opinion neither the inclusion of the words “ or appointed ” in section 1373 of the charter of 1897, nor their omission from the same section in the charter of 1901 had any reference to or bearing upon the power of the second class of justices to be appointed by the mayor, to wit, those appointed to fill a vacancy for the interim between the happening of the vacancy and the election and qualification of a successor. As to these the rule to be applied is the one which would have been applicable if both the charter of 1897'and the charter of 1901 had provided, as the latter charter does, that clerks and assistant clerks shall be appointed by the justice elected from the district. The general rule is, as seems to be conceded on all hands, that a public officer appointed to fill a vacancy caused by death, resignation or removal possesses all the power that his predecessor would have possessed if -he had remained in office, and I can find nothing in the word *316“ elected-” to-indicate an intention'on-the'part of the-" Legislature to . créáte -ah exception to this--general rule, especially as - the "résult-ofso .doing might leave"-a court -unprovided with a clerk fór ¡a considerable period.- ’ -For both reasons,- therefore, "-.because the- -relator did-not hqld-over and-had-no title "to the'office" in -any-eventj and-second,, because:Horn-idge was:lawfully appointed, the- order -in -myopinión should he reversed atid- the-motion- denied.- -
. „ Order .afdrmed, wjth ten dollars costs., apd dishprsemeñt^..